Let the Sun Shine In

Let the Sun Shine In

The era of secrecy in government is officially over.

January 28, 2009

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Repairing the damage done by George W. Bush will take years, but some problems can be solved with the stroke of a pen. That’s what President Obama did about excessive government secrecy. On his first day in office, he issued an executive order on freedom of information. “For a long time now there’s been too much secrecy in this city,” he said. “The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over. Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information but those who seek to make it known.”

This is good news not just for journalists and historians but for everybody–because democracy requires an informed citizenry. The Freedom of Information Act (FOIA), passed in 1966 and strengthened in 1974 in the wake of the Watergate scandal, is based on a simple notion: if people can’t find out what their government is doing, they can’t determine whether to support or oppose the officials in charge.

There is a deep-seated tendency in all bureaucracies toward secrecy. Classified files, confidential documents and official secrets are the means by which bureaucracies everywhere prevent scrutiny and criticism. So the act requires all federal agencies to release any information requested by any person–unless it falls under a few carefully defined exemptions, including personal privacy and national security. And it gives the federal courts the power to order agencies to release documents that have been improperly withheld.

The Bush administration did immense damage to FOIA and to the principle of freedom of information. A month after 9/11, then-Attorney General John Ashcroft issued a memo informing all agency heads that when they refused to release requested information, “you can be assured that the Department of Justice will defend your decisions.”

Even before Bush, FOIA requests met with long delays, and released documents often had extensive deletions. Under the Bush administration, the delays were considerably longer and the denials much more frequent. For example, the Clinton administration in 1998 released 44 percent of CIA files requested under FOIA; Bush in 2007 released just 11 percent. Denials and deletions can be appealed in court, but litigation against the government is expensive and time-consuming. Only the most dedicated organizations can hope to uncover facts about official misconduct.

If Bush made it harder to get documents under FOIA, he made it virtually impossible to get sensitive documents of past presidents. The Presidential Records Act, passed in 1978 in response to Richard Nixon’s claim that he had a right to destroy his White House tapes, established the principle that presidential papers (and tapes) belong to the people–forever. But under Bush’s post-9/11 executive order, a serving president could withhold records of his predecessors, and past presidents and vice presidents had the right to withhold documents dating from their administration. Even heirs were given this right.

That meant Bush and Cheney could keep their presidential records secret; George H.W. Bush could prevent historians from seeing his records; and Julie Nixon Eisenhower could block access to her father’s papers. Under Bush’s order, any presidential or vice presidential documents could be kept secret indefinitely.

Obama repealed the Bush policy. “This order ends the practice of having others besides the president assert executive privilege for records after an administration ends,” a White House press release said. Obama added, “I will also hold myself, as president, to a new standard of openness.”

There will be many battles to come, especially over the definition of national security and the standards for classification of documents. But Obama’s swift action–on the first day of his presidency–answers one question: can we have more openness in government? Yes we can.